Now It's McVeigh's Call

001115 Early Show Andrew Cohen CBS News legal consultant
Commentary by CBS News Legal Analyst Andrew Cohen.
Timothy McVeigh isn't likely to be walking free anytime soon, or any time ever. But the date of his demise now may be in serious doubt. If he wishes, with a single telephone call McVeigh now can request an important hearing which most likely would stop in its tracks for days, weeks, or even months the government's carefully coordinated execution schedule.

McVeigh has been put into this extraordinary position of power by an extraordinarily unconscionable mistake made by the Federal Bureau of Investigation.

More than six years after the bombing, and with less than a week to go before McVeigh is set to die by lethal injection in Terre Haute, Ind., the feds have informed McVeigh's attorneys and his trial judge that they failed to turn over to the defense prior to trial approximately 200 pieces of evidence — thousands of pages — in the form of witness statements.

It is unlikely that these statements would or could exonerate McVeigh, since the government case against him was overwhelming and since he since has confessed to the crime. And the legal bar preventing convictions from being overturned, even in extraordinary circumstances such as these, is incredibly, and purposely, high.

Essentially, McVeigh's attorneys would have to convince U.S. District Judge Richard Matsch that the just-discovered documents would have made a difference — a crucial difference — at his trial. That's tough to prove in any case and it would be almost impossible to do here. In fact, I can barely conceive of a scenario where something on those documents would convince a judge to give McVeigh a new trial or set him free.

But the existence of the witness statements, and their discovery at such a late date by the FBI, raises monumental questions about how McVeigh's trial was handled and whether McVeigh's constitutional rights were violated. Even admitted mass murderers, you see, are entitled to be given a chance to present their best possible defense. And courts have, from time to time, given mass murderers another crack at trial when serious constitutional violations occur.

So what happens next? So far, there's no word from the McVeigh camp on what they want to do. Will McVeigh stay consistent and opt to expedite his execution? Remember, he dropped all of his appeals late last year because he considered them to be futile and didn't want to live longer in solitary confinement. Or will McVeigh decide to use this development to essentially force a delay in his execution? That would give him the last laugh, if you will, on the very folks — federal agents — he hated enough to kill.

I spoke Thursday afternoon with Nathan Chambers, McVeigh's lead attorney. Chambers told me that he had informed his client of this development and that one of the options under "active" consideration was a motion for a stay of execuion along with a request for a hearing in front of Judge Matsch. If such a motion is made, it would be inconceivable to me that it could be resolved before next Wednesday's scheduled execution, despite Judge Matsch's reputation for speedy justice.

Chambers said that no such decision has yet been made. It will be up to McVeigh, the lawyer implied, and so another irony has been created in this case full of ironies.

McVeigh, the man on death row, now controls in many ways his own immediate fate. And the government which did so much to take that control away from him has intentionally or negligently given it right back to him.

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